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Daly v. Lappin

February 14, 2006

JAMES SCOTT DALY, INMATE #25605-198, PLAINTIFF,
v.
HARLEY LAPPIN, RANDY J. DAVIS, PATRICK PATTERSON, DEFENDANTS.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the United States Penitentiary in Marion, Illinois, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff previously was granted leave to proceed in forma pauperis, and he has tendered his initial partial filing fee as ordered.

Outstanding Motions

Currently pending before the Court is Plaintiff's motion for temporary restraining order or in the alternative, a preliminary injunction to prevent defendants from removing Plaintiff from a kosher diet (Doc. 6). A temporary restraining order (TRO), is an order issued without notice to the party to be enjoined that may last no more than ten days. A TRO may issue without notice only if (1) it clearly appears from the specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

FED.R.CIV.P. 65(b). Without expressing any opinion on the merits of any other of Plaintiff's claims for relief, the Court is of the opinion that a TRO should not issue in this matter. Plaintiff's allegations do not set forth specific facts demonstrating the likelihood of immediate and irreparable harm before Defendants can be heard. Moreover, federal courts must exercise equitable restraint in when asked to take over the administration of a prison, something that is best left to correctional officials and their staff.

IT IS THEREFORE ORDERED that the request for issuance of a temporary restraining order (Doc. 6) is DENIED.

In the alternative, Plaintiff seeks a preliminary injunction to prevent defendants from removing him from a kosher diet.

In considering whether to grant injunctive relief, a district court is obligated to weigh the relative strengths and weaknesses of a plaintiff's claims in light of a five-part test that has long been part of the Seventh Circuit's jurisprudence. Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law; (3) that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that defendants will endure were the injunction granted; and (5) that the public interest would be served by an injunction.

Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d 1004, 1011 (7th Cir. 1999). In this case, Plaintiff has not made a showing that there is a reasonable or substantial likelihood that he would succeed on the merits; he has an adequate remedy at law; and he has not shown how he will suffer irreparable harm.

IT IS THEREFORE ORDERED that the request for issuance of a temporary restraining order (Doc. 6) is DENIED.

Also pending before the Court is Plaintiff's motion to dispense with the requirement of security pursuant to Fed. R. Civ. P. 65(c). Plaintiff's motions for injunctive relief have been denied and no security is required. Accordingly, this motion (Doc. 8) is DENIED as moot.

Threshold Review

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental ...


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